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17. After the execution of Ex. III, it transpires that the founder of the trust had himself furnished security in the sum of Rs. 500 in favour of the committee on his wife's behalf, whom he had appointed trustee and in respect of whose trusteeship Ex, III had stipulated that security should be taken for the said amount. It is, how-, ever, the case of the appellant that sometime after the creation of the trust the wife of the founder, namely, Ghouse Bibi, was not in a fit position to carry on her duties as trustee, that thereupon, in or about 1923 the committee of supervision appointed the founder Rahamatulla himself as a trustee In place of his wife and that he was also given the power to appoint a trustee in his place if it became necessary. No document has been produced in support of what exactly was done by the committee consequent upon Ghouse Bibi, the founder's wife having ceased to be in a position to discharge the duties of a trustee. The respondent admitted that the founder was appointed a trustee in place of his wife, but did not admit that the said founder was authorised to appoint a trustee by the committee in the year 1923. For supporting this contention, the appellant relied upon the minutes book of the committee which according to him contained the resolution appointing Rahamatullah sahib as a trustee and also authorising him to appoint a trustee in his place as and when he felt it necessary. That minutes book was in the possession of the respondent. It appears that the appellant took necessary steps to compel the production of this minutes book by the respondent by issuing the necessary notices but it was of no avail. The respondent admitted having had the custody of the records including the resolution book for sometime, but he pleaded that the book of resolutions which was filed into Court in another suit, namely, O. S. No. 137 of 1935, was not taken return of by the respondent though he applied for it 0s early as 1944. This, the respondent sought to substantiate by production of Ex. VI which is a certified copy of D. R. P. No. 103 Of 1944 in O. S. No. 137 of 1935 on the file of the District Munsif's Court, Kavali, with the endorsement of the District Munsir's Court thereon. This exhibit shows that the respondent's application for return of the resolution book was rejected on the ground that it was filed by a witness into Court and that he was not entitled to claim a return of it.

18. The relevancy of this minutes boob, irrespective of the fact that it has been suppressed by the respondent or that the appellant did not himself take steps to secure it from the Court by necessary process of law, after having come to know that it was filed in O. S. No. 137 of 1935, arises only in regard to the point as to whether the founder, who was admittedly appointed a trustee had or had not the power to appoint another trustee in his place. The appellant wants to rely upon the minutes book for the purpose of showing that the founder had the power to appoint a trustee and the respondent contends that the founder was not authorised by the committee to appoint any successor to him in the office of trusteeship. It is a well known proposition of Islamic Law that the wakif has the power to appoint the first Mutavalli and also to provide for succession to the office of Mutavalli. The wakif also may nominate his successors by name, or indicate the class together with their qualifications, from whom the mutavalli may be appointed and may also invest the mutavalli with a power to nominate a successor after his death or relinquishment of office (Vide paragraph 204 of the "Principles of Mahomedan law" on page 190 by Mulla).

20. So far as the legal position goes, It cannot be disputed that a mutavalli as such cannot appoint his successor unless he is on his death-bed or there is a provision in the wakfnama as to how the office of the mutavalli should be filled up when vacancies arise or the wakfnama expressly authorises the mutavalli to appoint his successor. But in this second appeal, both the courts below have 'ignored a very important aspect of the case, namely, that in the present case, Rahamatullah Sahib, under whom both the appellant as well as the respondent have claimed a right to the office of mutavalliship has been himself the founder and had vested the power of appointing a mutavalli in the committee of supervision and had at the same time reserved to himself the power as founder to appoint a trustee overriding the powers given to the committee. Therefore when he was appointing either the appellant or the respondent as mutavalli, he must be deemed to be acting as such founder, irrespective of the fact that the committee had earlier appointed him as a trustee with or without power to appoint his successor in or about 1923, when Ghouse Bibi, the first appointed trustee or mutavalli, was not in a position to discharge her duties. The question is as to whether at the time when the said Rahamatullah Sahib appointed the appellant in the first instance under Ex. C and later on the respondent under Ex. I the said Rahamatullah had ceased to be the founder and whether he was in any way prevented from exercising his rights as a founder as and when certain contingencies arose which Justified in his opinion his acting as a founder in respect of the mutavalliship of the trust. As long as the founder was alive, it cannot be argued so long as he had reserved to himself the power if any to act himself as the mutavalli, that he could not exercise such power simply because the committee of supervision had intervened or that he was himself appointed as a mutavalli by the said committee for a time.

The feeble point that was raised by the learned counsel for the respondent was that the appellant did not claim that the appointment of the appellant was under the powers which Rahamatulla Sahib had reserved to himself in Ex. III. He urged that the appellant's case was that the committee of supervision, in exercise of the powers bestowed in that behalf appointed Rahamatullah Sahib in October 1923 or thereabouts to be a trustee in place of his wife Ghouse Eibi and that being the case even though he might have been empowered to appoint a person as a trustee in his place, the power offended against the principle of 'delegatus non-potest delegare'. It is no doubt true that in paragraph 6 of the plaint there is an averment that the appellant was appointed in pursuance of the powers bestowed in that behalf by the committee on Rahamatullah Sahib to be a trustee in place of his wife and to appoint another person as a trustee in his place. But a reference to paragraph 7 of the plaint would show that there is an averment that the appointment of the appellant as a trustee under Ex. C was in pursuance of the powers reserved for him in that behalf, and this reservation referred in that paragraph has reference only to the powers originally reserved by the said Rahamatullah Sahib in the document Ex. Ill whereby he as founder, could exercise the powers of appointing not merely himself as a trustee but also appointing another person as his successor. Therefore, there is no point in the contention of the learned counsel for the respondent that the plaint did not aver that the original founder assumed the reserved power and exercised it because the committee did not administer the trust and its properties in a proper and satisfactory manner.